IN THE CASE OF:	  

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090014305 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his under other than honorable conditions discharge to a general, under honorable conditions or an honorable discharge.

2.  The applicant states that he had one period of honorable service and he was going through a medical board for his feet during a 6-month period of another enlistment.  He goes on to state that he was an E-5 [sergeant] and he enjoyed being a Soldier; however, he was the sole support for his mother and family and he was needed at home during his father’s last days, death, and funeral.  Because his commander would not give him the hardship leave he requested, he sacrificed his career in order to care for his family.  He continues by stating that he was young and in emotional turmoil and he did not handle things in a mature way that he would have liked to.  He also states that he has learned much over the years and he would handle things differently now.  He further states that he has matured, his life is straightened out, and he is being denied all benefits as a veteran.

3.  The applicant provides three letters of support with his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 
3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 18 June 1961.  He was single when he enlisted in the Regular Army (RA) at Fort Jackson, SC on 19 June 1980 for a period of
4 years; training as a fire support specialist; assignment to the 2d Armored Division at Fort Hood, TX; and a cash enlistment bonus.  He completed his one station unit training (OSUT) at Fort Sill, OK, and he was transferred to Fort Hood for duty as a fire support specialist.  He was advanced to the rank/grade of specialist four (SP4)/E-4 on 1 November 1982.

3.  On 20 December 1983, he reenlisted for a period of 4 years, assignment to Alaska, and a selective reenlistment bonus.  He was married with three children at the time.  On 1 April 1984, he was promoted to the rank/grade of sergeant (SGT)/E-5.

4.  The applicant was transferred to Alaska on 19 August 1984 with his family and was assigned to a field artillery battery at Fort Richardson, Alaska.

5.  On 28 April 1987, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 17 January 1987 to 21 January 1987.  His punishment consisted of a reduction to the rank/grade specialist (SPC)/E-4.  He did not appeal his punishment.

6.  The applicant was also barred from reenlistment on 28 April 1987.

7.  On 9 June 1987, the applicant again went AWOL and he remained absent in desertion until he surrendered to military authorities at Fort Bragg, NC on
7 August 1987 and charges were preferred against him for the AWOL offense.

8.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records because they were loaned to the Department of Veterans Affairs (VA) in Columbia, SC in March 1988.  However, the available records contain a duly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that the applicant was on excess leave when he was discharged on 10 November 1987, under the provisions of Army Regulation 635-200, chapter 10, for the good of the 
service - in lieu of trial by court-martial with an under other than honorable conditions character of service.  He had served 7 years, 2 months, and 20 days of total active service and had 62 days of lost time due to AWOL.

9.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  A review of his official records fails to reveal any indication that the applicant was undergoing medical processing or any indication that he was experiencing family/personal problems at the time.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Paragraph 3-7b of the same regulation provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s overall record of service and the serious nature of the charges against him at the time simply does not rise to the level of a general, under honorable conditions or a fully honorable discharge.

4.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

5.  The applicant’s contentions and supporting documents have been noted; however, they are not sufficiently supported by the evidence submitted with his application or the evidence of record.  Accordingly, there appears to be no basis to grant his requested relief.

6.  Additionally, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Every case is individually decided based upon its merits when an applicant requests an upgrade of his or her discharge.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 

are insufficient as a basis for correction of the records of the individual concerned.



      ___________x___________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090014305



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ABCMR Record of Proceedings (cont)                                         AR20090014305



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